Common use of 7Indemnification Clause in Contracts

7Indemnification. (a) To the extent permitted by law, the Company will indemnify and hold harmless, each Holder and each of its officers, directors, partners and members and each person controlling such Holder within the meaning of Section 15 of the Securities Act, with respect to which registration has been effected pursuant to this Agreement, against all expenses, claims, losses, damages and liabilities (or actions in respect thereof), including any of the foregoing incurred in settlement of any litigation, commenced or threatened, arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any registration statement, prospectus, offering circular or other document, or any amendment or supplement thereto, incident to any such registration, or based on any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, or any violation (or alleged violation) of the Securities Act, the Exchange Act, state securities laws or any rule or regulation promulgated under such laws in connection with any such registration (a “Violation”) by the Company, and the Company will reimburse each such Holder, each of its officers, directors, partners and members and each person controlling such Holder, for any legal and any other expenses reasonably incurred, as such expenses are incurred, in connection with investigating, preparing or defending any such claim, loss, damage, liability or action, provided that the Company will not be liable in any such case to the extent that any such claim, loss, damage, liability, expense arises out of or is based on any untrue statement or omission or alleged untrue statement or omission, made, or a Violation occurs, in reliance upon and in conformity with written information furnished to the Company by such Holder or controlling person, and stated to be specifically for use therein; provided, however, that the indemnity agreement contained in this subsection 5.7(a) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company, which consent shall not be unreasonably withheld. (b) To the extent permitted by law, each Holder will, if Registrable Securities held by such Holder are included in the securities as to which such registration is being effected, indemnify and hold harmless the Company, each of its directors and officers, other holders of the Company’s securities covered by such registration statement, each person who controls the Company within the meaning of Section 15 of the Securities Act, and each other Holder, each of its officers and directors and each person controlling such Holder within the meaning of Section 15 of the Securities Act, against all claims, losses, damages and liabilities (or actions in respect thereof) arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any such registration statement, prospectus, offering circular or other document, or any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, or any Violation by the Holder, and will reimburse the Company, such other Holders, such directors, officers, persons, underwriters or control persons for any legal or any other expenses reasonably incurred, as such expenses are incurred, in connection with investigating or defending any such claim, loss, damage, liability or action, but in the case of the Company or the other Holders or their officers, directors or controlling persons, only to the extent that such untrue statement (or alleged untrue statement) or omission (or alleged omission) is made in such registration statement, prospectus, offering circular or other document, or a Violation occurs, in reliance upon and in conformity with information furnished to the Company by such Holder, and stated to be specifically for use therein; provided, however, that the indemnity agreement contained in this Section 5.7(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Holder, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, the liability of each Holder under Section 5.7(b) shall be limited in an amount equal to the proceeds from the public offering of the Registrable Securities sold by such Holder, unless such liability arises out of or is based on willful misconduct or fraud by such Holder. (c) Each party entitled to indemnification under this Section 5.7 (the “Indemnified Party”) shall give notice to the party required to provide indemnification (the “Indemnifying Party”) promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and shall permit the Indemnifying Party to assume the defense of any such claim or any litigation resulting therefrom, provided that counsel for the Indemnifying Party, who shall conduct the defense of such claim or litigation, shall be approved by the Indemnified Party (whose approval shall not unreasonably be withheld), and the Indemnified Party may participate in such defense at such party’s expense, and provided further that the failure of any Indemnified Party to give notice as provided herein shall relieve the Indemnifying Party of its obligations under this Agreement only to the extent that the failure to give such notice is materially prejudicial to an Indemnifying Party’s ability to defend such action and provided further, that the Indemnifying Party shall not assume the defense for matters as to which there is a conflict of interest or there are separate and different defenses, in which case, the Indemnifying Party shall pay for the reasonable costs and expenses of one separate counsel to be selected by the Indemnified Party. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the consent of each Indemnified Party (whose consent shall not be unreasonably withheld), consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability in respect to such claim or litigation. (d) If the indemnification provided for in this Section 5.7 is held by a court of competent jurisdiction to be unavailable to an Indemnified Party with respect to any loss, liability, claim, damage, expense or Violation referred to therein, then the Indemnifying Party, in lieu of indemnifying such Indemnified Party hereunder, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, liability, claim, damage, expense or violation in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party on the one hand and of the Indemnified Party on the other in connection with the statements or omissions that resulted in such loss, liability, claim, damage, expense or Violation as well as any other relevant equitable considerations; provided, that in no event shall any contribution by a Holder under this Section 5.7(d) exceed an amount equal to the aggregate net proceeds of the Registrable Securities sold by such Holder, unless such liability arises out of or is based upon willful misconduct or fraud by such Holder. The relative fault of the Indemnifying Party and of the Indemnified Party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact or Violation relates to information supplied by the Indemnifying Party or by the indemnified party and the parties’ relative intent, knowledge, access to information, and opportunity to correct or prevent such statement or omission. (e) Notwithstanding the foregoing, to the extent that the provisions on indemnification and contribution contained in the underwriting agreement entered into in connection with the underwritten public offering are in conflict with the foregoing provisions, the provisions in the underwriting agreement shall control. (f) Unless otherwise superseded by an underwriting agreement entered into in connection with the underwritten public offering, the obligations of the Company and Holders under this Section 5.7 shall survive the completion of any offering of Registrable Securities in a registration statement under this Section 5 and otherwise shall survive the termination of this Agreement.

7Indemnification. (a) To Each of the extent permitted by lawLenders agrees to indemnify the Administrative Agent, the Company will indemnify and hold harmless, each Holder Issuing Lender and each of its officersRelated Parties in its capacity as such (to the extent not reimbursed by Borrower or any other Loan Party pursuant to any Loan Document and without limiting the obligation of Borrower or any other Loan Party to do so) according to its Aggregate Exposure Percentage in effect on the date on which indemnification is sought under this Section 9.7 (or, directorsif indemnification is sought after the date upon which the Commitments shall have terminated and the Loans shall have been paid in full, partners in accordance with its Aggregate Exposure Percentage immediately prior to such date), from and members against any and each person controlling such Holder within all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever that may at any time (whether before or after the meaning of Section 15 payment of the Securities ActLoans) be imposed on, with respect incurred by or asserted against the Administrative Agent or such other Person in any way relating to which registration has been effected pursuant to or arising out of, the Commitments, this Agreement, against all expensesany of the other Loan Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by the Administrative Agent, claims, losses, damages and liabilities (or actions such other Person under or in respect thereof), including connection with any of the foregoing incurred in settlement of any litigation, commenced or threatened, arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any registration statement, prospectus, offering circular or other document, or any amendment or supplement thereto, incident to any such registration, or based on any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, or any violation (or alleged violation) of the Securities Act, the Exchange Act, state securities laws or any rule or regulation promulgated under such laws in connection with any such registration (a “Violation”) by the Company, and the Company will reimburse each such Holder, each of its officers, directors, partners and members and each person controlling such Holder, for any legal and any other expenses reasonably incurred, as amounts not reimbursed by Borrower or such expenses are incurred, in connection with investigating, preparing or defending any such claim, loss, damage, liability or action, other Loan Party; provided that the Company will not no Lender shall be liable in any such case to for the extent that any such claim, loss, damage, liability, expense arises out of or is based on any untrue statement or omission or alleged untrue statement or omission, made, or a Violation occurs, in reliance upon and in conformity with written information furnished to the Company by such Holder or controlling person, and stated to be specifically for use therein; provided, however, that the indemnity agreement contained in this subsection 5.7(a) shall not apply to amounts paid in settlement payment of any portion of such lossliabilities, claim, damage, liability, or action if such settlement is effected without the consent of the Company, which consent shall not be unreasonably withheld. (b) To the extent permitted by law, each Holder will, if Registrable Securities held by such Holder are included in the securities as to which such registration is being effected, indemnify and hold harmless the Company, each of its directors and officers, other holders of the Company’s securities covered by such registration statement, each person who controls the Company within the meaning of Section 15 of the Securities Act, and each other Holder, each of its officers and directors and each person controlling such Holder within the meaning of Section 15 of the Securities Act, against all claimsobligations, losses, damages damages, penalties, actions, judgments, suits, costs, expenses or disbursements that are found by a final and liabilities (or actions in respect thereof) arising out nonappealable decision of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any such registration statement, prospectus, offering circular or other document, or any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, or any Violation by the Holder, and will reimburse the Company, such other Holders, such directors, officers, persons, underwriters or control persons for any legal or any other expenses reasonably incurred, as such expenses are incurred, in connection with investigating or defending any such claim, loss, damage, liability or action, but in the case of the Company or the other Holders or their officers, directors or controlling persons, only to the extent that such untrue statement (or alleged untrue statement) or omission (or alleged omission) is made in such registration statement, prospectus, offering circular or other document, or a Violation occurs, in reliance upon and in conformity with information furnished to the Company by such Holder, and stated to be specifically for use therein; provided, however, that the indemnity agreement contained in this Section 5.7(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Holder, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, the liability of each Holder under Section 5.7(b) shall be limited in an amount equal to the proceeds from the public offering of the Registrable Securities sold by such Holder, unless such liability arises out of or is based on willful misconduct or fraud by such Holder. (c) Each party entitled to indemnification under this Section 5.7 (the “Indemnified Party”) shall give notice to the party required to provide indemnification (the “Indemnifying Party”) promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and shall permit the Indemnifying Party to assume the defense of any such claim or any litigation resulting therefrom, provided that counsel for the Indemnifying Party, who shall conduct the defense of such claim or litigation, shall be approved by the Indemnified Party (whose approval shall not unreasonably be withheld), and the Indemnified Party may participate in such defense at such party’s expense, and provided further that the failure of any Indemnified Party to give notice as provided herein shall relieve the Indemnifying Party of its obligations under this Agreement only to the extent that the failure to give such notice is materially prejudicial to an Indemnifying Party’s ability to defend such action and provided further, that the Indemnifying Party shall not assume the defense for matters as to which there is a conflict of interest or there are separate and different defenses, in which case, the Indemnifying Party shall pay for the reasonable costs and expenses of one separate counsel to be selected by the Indemnified Party. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the consent of each Indemnified Party (whose consent shall not be unreasonably withheld), consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability in respect to such claim or litigation. (d) If the indemnification provided for in this Section 5.7 is held by a court of competent jurisdiction to be unavailable to an Indemnified Party have resulted primarily from the Administrative Agent's, or such other Person's gross negligence or willful misconduct, and that with respect to any losssuch unpaid amounts owed to the Issuing Lender solely in its capacity as such, liabilityonly the Revolving Lenders shall be required to pay such unpaid amounts, claim, damage, such payment to be made severally among them based on such Revolving Lenders' Revolving Percentage (determined as of the time that the applicable unreimbursed expense or Violation referred to therein, then the Indemnifying Party, indemnity payment is sought). The agreements in lieu of indemnifying such Indemnified Party hereunder, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, liability, claim, damage, expense or violation in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party on the one hand and of the Indemnified Party on the other in connection with the statements or omissions that resulted in such loss, liability, claim, damage, expense or Violation as well as any other relevant equitable considerations; provided, that in no event shall any contribution by a Holder under this Section 5.7(d) exceed an amount equal to the aggregate net proceeds of the Registrable Securities sold by such Holder, unless such liability arises out of or is based upon willful misconduct or fraud by such Holder. The relative fault of the Indemnifying Party and of the Indemnified Party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact or Violation relates to information supplied by the Indemnifying Party or by the indemnified party and the parties’ relative intent, knowledge, access to information, and opportunity to correct or prevent such statement or omission. (e) Notwithstanding the foregoing, to the extent that the provisions on indemnification and contribution contained in the underwriting agreement entered into in connection with the underwritten public offering are in conflict with the foregoing provisions, the provisions in the underwriting agreement shall control. (f) Unless otherwise superseded by an underwriting agreement entered into in connection with the underwritten public offering, the obligations of the Company and Holders under this Section 5.7 shall survive the completion payment of any offering of Registrable Securities in a registration statement under this Section 5 the Loans and otherwise shall survive the termination of this Agreementall other amounts payable hereunder.

7Indemnification. (a) To the extent permitted by lawIn connection with any registration, subject to Section 7.7‎(d) below, the Company will shall indemnify and hold harmless, harmless each Holder that is a selling holder of Registrable Securities and each of its Affiliates, each underwriter (as defined in the Securities Act), and directors, officers, directorsemployees and agents of any of them, partners and members and each person controlling other Person who participates in the offering of such Holder securities and each other Person, if any, who controls (within the meaning of Section 15 the Securities Act) such seller, underwriter or participating Person (collectively, the “Holder Indemnified Person”) against any losses, claims, damages or liabilities (collectively, the “liability”), joint or several, to which such Holder Indemnified Person may become subject under the Securities Act or any other statute or at common law, insofar as such liability (or action in respect thereof) arises out of or is based upon (w) any untrue statement or alleged untrue statement of any material fact contained, on the effective date thereof, in any registration statement under which such securities were registered under the Securities Act, with respect to which registration has been effected pursuant to this Agreement, against all expenses, claims, losses, damages and liabilities (any preliminary prospectus or actions in respect thereof), including any of the foregoing incurred in settlement of any litigation, commenced or threatened, arising out of or based on any untrue statement (or alleged untrue statement) of a material fact final prospectus contained in any registration statement, prospectus, offering circular or other documenttherein, or any amendment or supplement thereto, incident to or any such registrationfree writing prospectus used in connection with any offering, including but not limited to, any free writing prospectus used by the Company, the underwriters or the Holders, or based on (x) any omission (or alleged omission) omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, therein not misleading, or (y) any violation (or alleged violation) by the Company of the Securities Act, the Exchange Act, any state securities or “blue sky” laws or any rule sale or regulation promulgated under such laws thereunder in connection with such registration, or (z) any such registration (a “Violation”) information provided by the Company, and Company or at the instruction of the Company will to any Person participating in the offer at the point of sale containing any untrue statement or alleged untrue statement of any material fact or omitting or allegedly omitting any material fact required to be included in such information or necessary to make the statements therein not misleading. Except as otherwise provided in Section 7.7‎(c) the Company shall reimburse each such Holder, each of its officers, directors, partners and members and each person controlling such Holder, for any legal and any other expenses reasonably incurred, as such expenses are incurred, Holder Indemnified Person in connection with investigating, preparing investigating or defending any such claimliability; provided, losshowever, damage, liability or action, provided that the Company will shall not be liable to any Holder Indemnified Person in any such case to the extent that any such claim, loss, damage, liability, expense liability arises out of or is based on upon any untrue statement or alleged untrue statement or omission or alleged untrue statement ​ omission made in such registration statement, preliminary or omission, madefinal prospectus, or a Violation occursamendment or supplement thereto, free writing prospectus, or other information, in reliance upon and in conformity with written information furnished in writing to the Company by such Holder or controlling person, and stated to be Indemnified Person specifically for use therein; providedand provided further, however, that the indemnity agreement contained in this subsection 5.7(a) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company, which consent Company shall not be unreasonably withheld.required to indemnify any Holder Indemnified Person against any liability arising from any untrue or misleading statement or omission contained in any preliminary prospectus if such deficiency is corrected in the final prospectus or for any liability which arises out of the failure of any Holder Indemnified Person to deliver a prospectus as required by the Securities Act (b) To the extent permitted by lawIn connection with any registration, each subject to Section 7.7‎(d) below, a Holder will, if selling any Registrable Securities held by such Holder are included in the securities as to which such registration is being effected, effected shall indemnify and hold harmless each other selling holder of any Registrable Securities, the Company, each of its directors and officers, each underwriter and each other holders of the Company’s securities covered by such registration statementPerson, each person if any, who controls the Company (within the meaning of Section 15 of the Securities Act) the Company or such underwriter (collectively, the “Company Indemnified Persons” and each other Holdertogether with the “Holder Indemnified Persons,” collectively, each of its officers and directors and each person controlling the “Indemnified Persons”), against any liability, joint or several, to which any such Holder within the meaning of Section 15 of Indemnified Person may become subject under the Securities ActAct or any other statute or at common law, against all claims, losses, damages and liabilities insofar as such liability (or actions in respect thereof) arising arises out of or is based on upon (x) any untrue statement (or alleged untrue statement) statement of a any material fact contained contained, on the effective date thereof, in any registration statement under which securities were registered under the Securities Act at the request of such registration statementselling Holder, prospectus, offering circular any preliminary prospectus or other documentfinal prospectus contained therein, or any amendment or supplement thereto, any free writing prospectus used in connection with such offering, including but not limited to, any free writing prospectus used by the Company, the underwriters, or the Holders, or (y) any omission (or alleged omission) omission by such selling Holder to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, therein not misleading, or (z) any Violation by information provided at the Holderinstruction of the Company to any Person participating in the offer at the point of sale containing any untrue statement or alleged untrue statement of any material fact or omitting or allegedly omitting any material fact required to be included in such information or necessary to make the statements therein not misleading, and will reimburse the Company, such other Holders, such directors, officers, persons, underwriters or control persons for any legal or any other expenses reasonably incurred, as such expenses are incurred, in connection with investigating or defending any such claim, loss, damage, liability or action, but in the case of (x), (y) and (z) to the Company or the other Holders or their officersextent, directors or controlling persons, but only to the extent extent, that such untrue statement (or alleged untrue statement) statement or omission (or alleged omission) is omission was made in such registration statement, preliminary or final prospectus, offering circular amendment or supplement thereto, free writing prospectus or other document, or a Violation occursinformation, in reliance upon and in conformity with information furnished in writing to the Company by such Holder, and stated to be selling Holder specifically for use therein. Such selling Holder shall reimburse any Holder Indemnified Person in connection with investigating or defending any such liability; provided, however, that in no event shall the indemnity agreement liability of any Holder for indemnification under this Section ‎7 in its capacity as a seller of Warrants and/or Registrable Securities exceed the lesser of (i) that proportion of the total of such losses, claims, damages, expenses or liabilities indemnified against equal to the proportion of the total securities sold under such registration statement which is being held by such Holder, or (ii) the amount equal to the proceeds to such Holder of the securities sold in any such registration; and provided further, however, that no selling Holder shall be required to indemnify any Person against any liability arising from any untrue or misleading statement or omission contained in this any preliminary prospectus if such deficiency is corrected in the final prospectus or for any liability which arises out of the failure of any Person to deliver a prospectus as required by the Securities Act. (c) In the event the Company, any selling Holder or other person receives a complaint, claim or other notice of any liability or action, giving rise to a claim for indemnification under Section 5.7(b7.7‎(a) or Section 7.7‎(b) above, the person claiming indemnification under such paragraphs shall not apply promptly notify the person against whom indemnification is sought of such complaint, notice, ​ claim or action, and such indemnifying person shall have the right to amounts paid in settlement of investigate and defend any such loss, claim, damage, liability, liability or action if such settlement is effected without the consent of the Holder, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, the liability of each Holder under Section 5.7(b) shall be limited in an amount equal to the proceeds from the public offering of the Registrable Securities sold by such Holder, unless such liability arises out of or is based on willful misconduct or fraud by such Holder. (c) Each party entitled to indemnification under this Section 5.7 (the “Indemnified Party”) shall give notice to the party required to provide indemnification (the “Indemnifying Party”) promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and shall permit the Indemnifying Party to assume the defense of any such claim or any litigation resulting therefrom, provided that counsel for the Indemnifying Party, who shall conduct the defense of such claim or litigation, shall be approved by the Indemnified Party (whose approval shall not unreasonably be withheld), and the Indemnified Party may participate in such defense at such party’s expense, and provided further that the failure of any Indemnified Party to give notice as provided herein shall relieve the Indemnifying Party of its obligations under this Agreement only to the extent that the failure to give such notice is materially prejudicial to an Indemnifying Party’s ability to defend such action and provided further, that the Indemnifying Party shall not assume the defense for matters as to which there is a conflict of interest or there are separate and different defenses, in which case, the Indemnifying Party shall pay for the reasonable costs and expenses of one separate counsel to be selected by the Indemnified Party. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the consent of each Indemnified Party (whose consent shall not be unreasonably withheld), consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability in respect to such claim or litigationaction. (d) If the indemnification provided for in this Section 5.7 ‎7.7 is held by a court of competent jurisdiction to be unavailable to an Indemnified Party Person with respect to any loss, liability, claim, damage, expense or Violation liability referred to therein, then the Indemnifying Partyindemnifying party, in lieu of indemnifying such Indemnified Party Person hereunder, shall contribute to the amount paid or payable by such Indemnified Party Person as a result of such any loss, liability, claim, damage, expense or violation liability in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party indemnifying party, on the one hand hand, and of the Indemnified Party Person, on the other hand, in connection with the statements or omissions that resulted in such any loss, liability, claim, damage, expense or Violation liability as well as any other relevant equitable considerations; provided, however, that in no event shall any contribution by a Holder under this Section 5.7(d7.7‎(d) when combined with any other amounts paid by such Holder pursuant to this Section ‎7 exceed an the lesser of (a) that proportion of the total of such losses, claims, damages, expenses or liabilities indemnified against equal to the proportion of the total securities sold under such registration statement which is being held by such Holder, or (b) the amount equal to the aggregate net proceeds to such Holder of the Registrable Securities securities sold by in any such Holder, unless such liability arises out of or is based upon willful misconduct or fraud by such Holderregistration. The relative fault of the Indemnifying Party indemnifying party and of the Indemnified Party Person shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact or Violation relates to information supplied by the Indemnifying Party indemnifying party or by the indemnified party Indemnified Person and the parties’ relative intent, knowledge, access to information, and opportunity to correct or prevent such statement or omission. (e) Notwithstanding the foregoing, to the extent that the provisions on indemnification and contribution contained in the underwriting agreement entered into in connection with the underwritten public offering are in conflict with the foregoing provisions, the provisions in the underwriting agreement shall control. (f) Unless otherwise superseded by an underwriting agreement entered into in connection with the underwritten public offering, the The obligations of the Company and Holders under this Section 5.7 ‎7.7 shall survive the completion of any offering of Registrable Securities securities in a registration statement under this Section 5 ‎7 or otherwise (and otherwise shall survive the termination of this AgreementWarrant).

7Indemnification. (a) To Each of the extent permitted by lawLenders agrees to indemnify the Administrative Agent, the Company will indemnify and hold harmless, each Holder Issuing Lender and each of its officersRelated Parties in its capacity as such (to the extent not reimbursed by Borrower or any other Loan Party pursuant to any Loan Document and without limiting the obligation of Borrower or any other Loan Party to do so) according to its Aggregate Exposure Percentage in effect on the date on which indemnification is sought under this Section 9.7 (or, directorsif indemnification is sought after the date upon which the Commitments shall have terminated and the Loans shall have been paid in full, partners in accordance with its Aggregate Exposure Percentage immediately prior to such date), from and members against any and each person controlling such Holder within all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever that may at any time (whether before or after the meaning of Section 15 payment of the Securities ActLoans) be imposed on, with respect incurred by or asserted against the Administrative Agent or such other Person in any way relating to which registration has been effected pursuant to or arising out of, the Commitments, this Agreement, against all expensesany of the other Loan Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by the Administrative Agent, claims, losses, damages and liabilities (or actions such other Person under or in respect thereof), including connection with any of the foregoing incurred in settlement of any litigation, commenced or threatened, arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any registration statement, prospectus, offering circular or other document, or any amendment or supplement thereto, incident to any such registration, or based on any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, or any violation (or alleged violation) of the Securities Act, the Exchange Act, state securities laws or any rule or regulation promulgated under such laws in connection with any such registration (a “Violation”) by the Company, and the Company will reimburse each such Holder, each of its officers, directors, partners and members and each person controlling such Holder, for any legal and any other expenses reasonably incurred, as amounts not reimbursed by Borrower or such expenses are incurred, in connection with investigating, preparing or defending any such claim, loss, damage, liability or action, other Loan Party; provided that the Company will not no Lender shall be liable in any such case to for the extent that any such claim, loss, damage, liability, expense arises out of or is based on any untrue statement or omission or alleged untrue statement or omission, made, or a Violation occurs, in reliance upon and in conformity with written information furnished to the Company by such Holder or controlling person, and stated to be specifically for use therein; provided, however, that the indemnity agreement contained in this subsection 5.7(a) shall not apply to amounts paid in settlement payment of any portion of such lossliabilities, claim, damage, liability, or action if such settlement is effected without the consent of the Company, which consent shall not be unreasonably withheld. (b) To the extent permitted by law, each Holder will, if Registrable Securities held by such Holder are included in the securities as to which such registration is being effected, indemnify and hold harmless the Company, each of its directors and officers, other holders of the Company’s securities covered by such registration statement, each person who controls the Company within the meaning of Section 15 of the Securities Act, and each other Holder, each of its officers and directors and each person controlling such Holder within the meaning of Section 15 of the Securities Act, against all claimsobligations, losses, damages damages, penalties, actions, judgments, suits, costs, expenses or disbursements that are found by a final and liabilities (or actions in respect thereof) arising out nonappealable decision of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any such registration statement, prospectus, offering circular or other document, or any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, or any Violation by the Holder, and will reimburse the Company, such other Holders, such directors, officers, persons, underwriters or control persons for any legal or any other expenses reasonably incurred, as such expenses are incurred, in connection with investigating or defending any such claim, loss, damage, liability or action, but in the case of the Company or the other Holders or their officers, directors or controlling persons, only to the extent that such untrue statement (or alleged untrue statement) or omission (or alleged omission) is made in such registration statement, prospectus, offering circular or other document, or a Violation occurs, in reliance upon and in conformity with information furnished to the Company by such Holder, and stated to be specifically for use therein; provided, however, that the indemnity agreement contained in this Section 5.7(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Holder, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, the liability of each Holder under Section 5.7(b) shall be limited in an amount equal to the proceeds from the public offering of the Registrable Securities sold by such Holder, unless such liability arises out of or is based on willful misconduct or fraud by such Holder. (c) Each party entitled to indemnification under this Section 5.7 (the “Indemnified Party”) shall give notice to the party required to provide indemnification (the “Indemnifying Party”) promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and shall permit the Indemnifying Party to assume the defense of any such claim or any litigation resulting therefrom, provided that counsel for the Indemnifying Party, who shall conduct the defense of such claim or litigation, shall be approved by the Indemnified Party (whose approval shall not unreasonably be withheld), and the Indemnified Party may participate in such defense at such party’s expense, and provided further that the failure of any Indemnified Party to give notice as provided herein shall relieve the Indemnifying Party of its obligations under this Agreement only to the extent that the failure to give such notice is materially prejudicial to an Indemnifying Party’s ability to defend such action and provided further, that the Indemnifying Party shall not assume the defense for matters as to which there is a conflict of interest or there are separate and different defenses, in which case, the Indemnifying Party shall pay for the reasonable costs and expenses of one separate counsel to be selected by the Indemnified Party. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the consent of each Indemnified Party (whose consent shall not be unreasonably withheld), consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability in respect to such claim or litigation. (d) If the indemnification provided for in this Section 5.7 is held by a court of competent jurisdiction to be unavailable to an Indemnified Party have resulted primarily from the Administrative Agent’s, or such other Person’s gross negligence or willful misconduct, and that with respect to any losssuch unpaid amounts owed to the Issuing Lender solely in its capacity as such, liabilityonly the Revolving Lenders shall be required to pay such unpaid amounts, claim, damage, such payment to be made severally among them based on such Revolving Lenders’ Revolving Percentage (determined as of the time that the applicable unreimbursed expense or Violation referred to therein, then the Indemnifying Party, indemnity payment is sought). The agreements in lieu of indemnifying such Indemnified Party hereunder, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, liability, claim, damage, expense or violation in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party on the one hand and of the Indemnified Party on the other in connection with the statements or omissions that resulted in such loss, liability, claim, damage, expense or Violation as well as any other relevant equitable considerations; provided, that in no event shall any contribution by a Holder under this Section 5.7(d) exceed an amount equal to the aggregate net proceeds of the Registrable Securities sold by such Holder, unless such liability arises out of or is based upon willful misconduct or fraud by such Holder. The relative fault of the Indemnifying Party and of the Indemnified Party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact or Violation relates to information supplied by the Indemnifying Party or by the indemnified party and the parties’ relative intent, knowledge, access to information, and opportunity to correct or prevent such statement or omission. (e) Notwithstanding the foregoing, to the extent that the provisions on indemnification and contribution contained in the underwriting agreement entered into in connection with the underwritten public offering are in conflict with the foregoing provisions, the provisions in the underwriting agreement shall control. (f) Unless otherwise superseded by an underwriting agreement entered into in connection with the underwritten public offering, the obligations of the Company and Holders under this Section 5.7 shall survive the completion payment of any offering of Registrable Securities in a registration statement under this Section 5 the Loans and otherwise shall survive the termination of this Agreementall other amounts payable hereunder.